An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-280
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
STATE OF NORTH CAROLINA
v. Beaufort County
No. 08CRS050412
ASHLEY HOPE WYNN
Appeal by Defendant from judgments entered 1 May 2013 by
Judge W. Russell Duke, Jr., in Beaufort County Superior Court.
Heard in the Court of Appeals 27 August 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Brenda Eaddy, for the State.
McCotter Ashton, PA, by Rudolph A. Ashton, III, for the
Defendant.
DILLON, Judge.
Ashley Hope Wynn (“Defendant”) appeals from judgments
entered upon a jury verdict finding her guilty of felonious
breaking and entering; felonious larceny; and obtaining property
by false pretenses.
I. Background
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On or about 21 September 2007, a contractor reported that
certain tools, including a nail gun, had been stolen from the
inside of a house that he was constructing. Three days later,
two men and a woman took the nail gun to the home of James
Ratcliff and sold it to Mr. Ratcliff for $30.00. They gave him
a receipt signed by the woman, using the name “Adrian Phelps”.
The State came to suspect Defendant, Jonathan Cox, and
Ralph Miles as the three individuals who sold the nail gun to
Mr. Ratcliff and charged them with various crimes. Mr. Miles
pleaded guilty to certain charges and received a mitigated
sentence. However, Defendant and Mr. Cox did not plead guilty
to any charges and were brought to trial in April 2013 – over
five and one-half years after the incident – being tried
together.
At trial, Mr. Ratcliff testified concerning the sale,
including that he knew the co-defendant, Mr. Cox, and that Mr.
Cox had come to his home with a man and woman whom he did not
know to sell him the nail gun.
Mr. Miles, who had already pleaded guilty to certain
charges, testified that he, Defendant, and the co-defendant, Mr.
Cox, sold the stolen nail gun to Mr. Ratcliff.
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Defendant testified in her own defense, denying that she
had any involvement in the incident. Further, she testified
that she had never met Mr. Ratcliff or ever been to Mr.
Ratcliff’s home.
The jury found Defendant guilty of felonious breaking and
entering (the house under construction); felonious larceny (of
the nail gun); and obtaining property (money from Mr. Ratcliff)
by false pretenses. The trial court entered three separate
judgments, sentencing Defendant to eight to ten months for each
offense, ordering that the sentences run consecutively.
Defendant appeals from those judgments.
II. Analysis
On appeal, Defendant argues that the trial court erred in
admitting into evidence a certain document (the “Document”)
because it was not properly authenticated. This Document
purports to be Defendant’s statement made to an investigating
officer in which she admits being at Mr. Ratcliff’s home on the
day in question with Mr. Miles and Mr. Cox, thus contradicting a
key part of her trial testimony that she had never been to Mr.
Ratcliff’s home. The Document contained two signatures, one
that purported to be that of Defendant acknowledging that
statement as hers and one that purported to be that of an
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investigating officer acknowledging that he witnessed Defendant
sign the statement. We agree that it was error to admit the
Document in its entirety. Even assuming, without deciding, that
it was proper to allow the jury to consider Defendant’s
purported signature to authenticate the Document, it was
improper to allow the jury to consider the purported signature
of the investigating officer to authenticate the Document.
Furthermore, we believe that this error was prejudicial.
Accordingly, we reverse the judgments against Defendant and
order a new trial.
1. Admission of the Document
During its case in chief, the State did not attempt to
offer the Document into evidence. Defendant testified in her
own defense, stating that she was not involved in the crimes;
that she had never seen Mr. Ratcliff; and that she had never
been to Mr. Ratcliff’s home. She also provided a handwriting
sample, which was admitted into evidence, in an effort to show
that it was not her handwriting on the receipt which was signed
by the seller as “Adrian Phelps” and given to Mr. Ratcliff when
he bought the nail gun.
During cross-examination, counsel for the State handed
Defendant the Document in an attempt to authenticate it. The
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State referred to the Document as a voluntary statement she made
to “Investigator Gaskins,” purportedly an officer investigating
the crime. Defendant was equivocal in her testimony regarding
her purported signature on the Document. She testified that the
signature looked “similar” to her handwriting, and that it was
possible that she signed it; however, she stated that she had no
memory of signing the statement or signing any witness
statement. After counsel for the State asked her to read the
Document to herself, she testified that she remembered speaking
with an investigating officer, but that the statement in the
Document was not consistent with what she told the officer; that
she had no recollection of the name of the officer with whom she
spoke; and that she did not remember signing a witness
statement.
During the State’s rebuttal, the State moved to introduce
the entire Document into evidence. Defendant’s counsel
objected, arguing that the Document had not been properly
authenticated. The trial court overruled the objection and
admitted the Document into evidence. On appeal, Defendant
argues that the Document was erroneously admitted, contending it
was not properly authenticated.
An out-of-court statement of a defendant is admissible
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under the exception to the hearsay rule for statements by a
party-opponent under Rule 801(d)(A) of the North Carolina Rules
of Evidence. State v. Gregory, 340 N.C. 365, 401, 459 S.E.2d
638, 658 (1995). However, such a statement is not admissible
unless it is properly authenticated. Rule 901 of our Rules of
Evidence provides that “[t]he requirement of authentication . .
. is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” N.C. Gen.
Stat. § 8C-1, Rule 901(a) (2013). Rule 902 provides that
certain types of documents are deemed self-authenticating, not
requiring extrinsic evidence to be considered authenticated.
N.C. Gen. Stat. § 8C-1, Rule 902 (2013).
In the context of a criminal trial, our Supreme Court has
further limited the manner in which a document purporting to be
the “confession” of the defendant may be authenticated. State
v. Walker, 269 N.C. 135, 139, 152 S.E.2d 133, 137 (1967)
(holding that “[i]f [a] transcribed statement is not read by or
to [the] accused, and is not signed by [the] accused, or in some
other manner approved, or its correctness acknowledged, the
instrument is not legally, or per se, the confession of [the]
accused; and it is not admissible in evidence as the written
confession of [the] accused.”). However, these extra
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limitations do not apply where the statement by a criminal
defendant sought to be introduced is not a “confession.” State
v. Moody, 345 N.C. 563, 579, 481 S.E.2d 629, 637 (1997).
Here, we do not believe that the Document is a “confession”
of Defendant. Specifically, assuming that the statement in the
Document is hers, Defendant does not confess to participating in
the crime. Rather, she provides an alternate defense, namely
that though she was at Mr. Ratcliff’s house on the day in
question, she did not participate in the nail gun transaction
but rather was there to use Mr. Ratcliff’s bathroom. Therefore,
the statement would be admissible if properly authenticated
under the Rules of Evidence, not subject to the restrictions
laid down in Walker.
In this case, the record suggests that the State attempted
to authenticate the Document in a number of ways. The record
indicates that the State attempted to authenticate the Document
by asking Defendant if she was familiar with the statement or if
she signed it, arguably pursuant to N.C. Gen. Stat. § 8C-1, Rule
901(b)(1) (2013) (allowing authentication through the testimony
of a witness with knowledge). However, the record also
demonstrates that Defendant denied that she was familiar with
the Document or that she remembered signing the Document.
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The State then attempted to authenticate the Document by
questioning Defendant whether the signature on the Document was
similar to hers, again arguably under Rule 901(b)(1). The
record also suggests that the State may have authenticated the
Document by allowing the jury to compare Defendant’s purported
signature on the Document with the handwriting sample Defendant
produced during her trial testimony, arguably under Rule
901(b)(3) (allowing authentication or identification of a
signature through “[c]omparison by the trier of fact or by
expert witness with specimens which have been authenticated”).
Notwithstanding, the record shows that the State
represented the Document to be a statement made by Defendant to
a law enforcement officer named “Investigator Gaskins” who was
investigating the crime. Investigator Gaskins was never called
as a witness at trial. In other words, the jury was led to
believe that the Document was a statement made to Investigator
Gaskins; and, accordingly, the State implicitly attempted to
authenticate the Document by Investigator Gaskins’ purported
signature acknowledging that he witnessed Defendant’s statement
and signature. Specifically, during the State’s attempt to
authenticate the document on its cross-examination of Defendant,
the following exchange took place:
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Q: Did you ever talk to Investigator
Gaskins of the Sheriff’s Department about
this case?
A: I don’t remember.
[District Attorney hands Document to
Defendant.]
Q: I’ll show you . . . a written
statement, one that says “Criminal
Investigation Division Voluntary Statement
Form”. . . .
* * *
Q: You don’t remember talking to
Investigator Gaskins in January of 2008?
A: No, sir. . . .
* * *
Q: So this statement to Investigator
Gaskins . . . you’re saying you don’t
remember making this statement.
A: No, sir.
(Emphasis added.)
Therefore, assuming, arguendo, that it was appropriate to
authenticate the Document in the other ways identified above, we
believe it was error for the Document to be authenticated by the
admission of the purported signature/acknowledgment of
Investigator Gaskins. The State did not offer any evidence to
authenticate Investigator Gaskins’ signature, nor did the State
call him to testify. His signature was not notarized nor is
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there any indication that Investigator Gaskins was signing as a
notary or that his signature otherwise served as a proper means
to deem the Document as self-authenticated under Rule 902.1
The difficulty in this case is that Defendant’s counsel was
not allowed the opportunity to elaborate on the basis of the
objection, though, the record reflects that Defendant’s counsel
attempted to do so:
[PROSECUTOR]: Your Honor, for rebuttal, I
would move to introduce [the Document into
evidence].
THE COURT: It’s admitted.
* * *
[DEFENSE ATTORNEY]: Your Honor, I would
object to that.
THE COURT: All right.
[DEFENSE ATTORNEY]: It was not identified –
THE COURT: Don’t argue before the jury.
The objection is noted and the objection is
overruled.
However, in her brief to this Court, Defendant argues that the
Document was not properly authenticated, in part, because the
1
Whether the purported signature of the officer, if properly
authenticated, would have been inadmissible based on some other
grounds, e.g., hearsay or the right to confrontation, is not
before us. Therefore, our holding should not be construed to
support the proposition that the signature would have been
admissible merely based on a conclusion that it had been
properly authenticated.
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State did not call the officer who purportedly wrote down
Defendant’s statement and because the Document was not properly
self-authenticated.
2. Prejudicial Effect
Having concluded that the court erred, we must determine if
the error is reversible. We believe it is.
Because we believe Defendant properly objected to its
admission at trial, the error of admitting the entire Document
is reversible if it was prejudicial. N.C. Gen. Stat. § 15A-
1443(a) (2013). The test for prejudicial error is “whether
there [exists] a reasonable possibility that the evidence
complained of contributed to the conviction[.]” State v. Milby,
302 N.C. 137, 142, 273 S.E.2d 716, 720 (1981) (emphasis added).
In this case, Defendant’s entire defense was based on her
contention that she was not “the woman” at Mr. Ratcliff’s home
with Mr. Miles and the co-defendant, Mr. Cox, on the day in
question. Defendant emphatically testified that she was not
involved in the incident and that she had never seen Mr.
Ratcliff or been to his home. The Document, however, contains
Defendant’s purported statement in which she admits being “the
woman” at Mr. Ratcliff’s home with Mr. Miles and Mr. Cox on the
day in question.
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We believe that it is reasonably possible that a juror
would not have been convinced of Defendant’s guilt beyond a
reasonable doubt based on the other evidence presented by the
State, apart from the Document. The State’s other evidence
essentially consisted of the testimony of Mr. Miles and the in-
court identification by Mr. Ratcliff.
Regarding Mr. Miles’ testimony, while he was unequivocal
regarding Defendant’s involvement, he testified that Defendant
was his former girlfriend and that he agreed to testify against
her in exchange for a reduced sentence. Accordingly, it is
reasonably possible that a juror would have afforded his
testimony very little weight.
Regarding Mr. Ratcliff’s testimony, though he did identify
Defendant as “the woman” who sold him the nail gun, it is
reasonably possible that a juror was not convinced that his in-
court identification was sufficiently reliable. Most notably,
he admitted that the co-defendant, Mr. Cox, was a long-time
acquaintance of his and that – somewhat incredibly – he had a
conversation with Mr. Cox just prior to taking the stand in
which Mr. Cox indicated that Defendant was “the woman” who sold
him the nail gun, signing the receipt given to him as “Adrian
Phelps”:
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Q: Well, how [d]o you know whether
[Defendant’s] name is Ashley Wynn or Adrian
Phelps?
[MR. RATCLIFF:] Because I just talked to
[co-defendant] Jonathan [Cox] today and he
told me what her name was.
Further, Mr. Ratcliff admitted that the only time he had ever
seen “the woman” – prior to his identification of Defendant at
trial – was over five and one-half years earlier, on the day he
bought the nail gun. When asked if Defendant was “the woman”
who signed the receipt, his response was rather equivocal: “I
think so.” Finally, Mr. Ratcliff acknowledged his memory of the
day in question had faded somewhat; for example, when he
admitted misremembering the exact amount he paid for the nail
gun, he stated that the sale had happened “long ago” and that he
“can’t remember some of it.”
The trial court, obviously adressing Mr. Ratcliff’s
equivocal identification of Defendant, directly asked him to
clarify his testimony concerning his identification of
Defendant, at which time Mr. Ratcliff responded with more
certainty. However, despite his increased certainty in response
to the trial court’s questioning, it is reasonably possible that
a juror still could have found that Mr. Ratcliff’s
identification of Defendant was not sufficiently reliable, based
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on the manner in which the trial court questioned him and his
response. Specifically, the trial court commanded Defendant and
Mr. Cox to stand together, whereupon the trial court asked Mr.
Ratcliff three times in succession if he was certain that
Defendant and Mr. Cox, together, were the “people” who sold him
the gun, to which he responded in the affirmative each time,
however, with his last response being, “Yes, sir. I’ve known
[the co-defendant] Jonathan [Cox] forever.”2
We conclude that it is reasonably possible that a juror
became convinced of Defendant’s guilt beyond a reasonable doubt
by giving substantial weight to the Document. We recognize that
any such juror may have reached his conclusion regarding the
Document’s authenticity based on any one of the number of ways
that the State sought to authenticate the Document. However, we
also recognize that it is reasonably possible that at least one
of these jurors found that the Document as a whole was only
2
While a trial court is permitted to question a witness, N.C.
Gen. Stat. § 8C-1, Rule 614(b)(2013), our Supreme Court has held
that “[s]uch questioning must be conducted in such a manner as
to avoid prejudice to either party.” State v. Whittington, 318
N.C. 114, 125, 347 S.E.2d 403, 409 (1986) (emphasis added). We
do not reach the issue of whether the trial court conducted its
questioning in a manner that prejudiced Defendant. However, in
this situation where Mr. Ratcliff had been unequivocal about
knowing Mr. Cox, the better practice would have been for the
trial court to ask Mr. Ratcliff about the certainty of his
identification of Defendant separately.
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properly authenticated by Investigator Gaskins’ acknowledgement,
or that said juror afforded the Document substantial weight
based on Investigator Gaskins’ acknowledgement, which itself was
not properly authenticated. Therefore, we must conclude that
the error was prejudicial to Defendant and that she is entitled
to a new trial.
III. Defendant’s Motion to Dismiss
Though we conclude that Defendant is entitled to a new
trial based on the improper admission of the Document, we
address another argument raised by Defendant in this appeal, as
it may come up in a new trial. In this argument, Defendant
contends that the trial court erred in denying her motion to
dismiss the charge of breaking and entering into the house under
construction due to insufficient evidence.
Regarding this charge, the State relied on the testimonies
of the owner of the contracting corporation constructing the
house and an employee of the corporation. These witnesses
essentially testified that the corporation was occupying the
house for the purposes of completing construction and that the
house had been broken into and tools had been stolen. Defendant
contends that there was no evidence as to the owner of the house
and that the State was required to identify and call the owner
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of the house to testify that (s)he had not given Defendant
permission to enter the house. We believe the decision by our
Supreme Court in State v. Sellers, 273 N.C. 641, 161 S.E.2d 15
(1968), is instructive. In that case, the Supreme Court held
that an indictment for breaking and entering is sufficient where
it alleges the identity of the entity who owns or is occupying
the building. Id. at 650, 161 S.E.2d at 21-22. Here, we note
that the indictment charging Defendant states that the house was
“occupied” by the contractor. We believe that testimony from
the contractor who was occupying the house was sufficient to
sustain Defendant’s conviction. We do not believe that a
conviction for breaking and entering fails because the State
failed to call every person who might have a possessory or
ownership interest in the property to testify. Therefore, this
argument is overruled.
IV. Conclusion
Based on the foregoing, we reverse the judgments against
Defendant and hold that she is entitled to a new trial.
NEW TRIAL.
Judge HUNTER, Robert C. and Judge DAVIS concur.
Report per Rule 30(e).
State v. Wynn
Combined Opinion